Mr I Read v Adventure Risk Management Services Ltd and Tourism Quality Services Ltd: 1601409/2020
JUDGMENT
[1]There was a relevant transfer, within the meaning of Regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, on 1 April 2020, from the Second Respondent to the First Respondent.[2]The Claimant’s unfair dismissal claim against the second respondent is dismissed.[3]The Claimant’s unpaid wages claim against the second respondent is dismissed. JUDGMENT having been sent to the parties on 23 March 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The Claimant, Mr Read, was employed by the Second Respondent Tourism Quality Services Limited (TQS) as a Senior Inspector from 1996. TQS was contracted with the Health and Safety Executive (HSE) to provide inspections and report functions in relation to providing licenses for adventure activities. He claims that he was transferred to the First Respondent, Adventure Risk Management Service Limited (ARMS) on 1 April 2020 following its successful tender with the HSE. He claims that the transfer was a relevant transfer under Regulation 3(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations).[2]The Second Respondent agrees there was a relevant transfer. The First Respondent denies that a relevant transfer took place. Claims and Issues[3]The Claimant has bought a claim against the First Respondent, or in the alternative the Second Respondent, for unfair dismissal.[4]The Claimant has also submitted a claim in the alternative against the Second Respondent for unpaid wages, in the event there has not been a relevant transfer under the TUPE Regulations.[5]The Claimant has also brought a claim against both respondents for a failure to inform and consult under the TUPE Regulations.[6]The issues to be decided in this preliminary hearing were identified in the Order of Employment Judge Harfield on 19 November 2020 and confirmed at the start of the hearing as follows:(a) Is TUPE applicable to the case, because there was either a business transfer or service provision change?(b) Was there, on 31 March 2020, a transfer from the Second Respondent to the First Respondent of an undertaking or part of an undertaking or business situated immediately before the transfer in the United Kingdom?(c) If so, did that transfer involve the transfer of an economic entity?(d) If so, did that economic entity retain its identity before and after the transfer(e) Did activities cease to be carried out by the Second Respondent on HSE’s behalf on 31 March 2020?(f) If so, were fundamentally the same activities carried out by the First Respondent on the HSE’s behalf after 31 March 2020?(g) If so, was there, prior to 31 March 2020, an organized grouping of employees situated in the Great Britain which had as its principle purpose the carrying out of the activities concerned on behalf of the HSE?(h) If so, did the HSE intend that fundamentally the same activities, would after 31 March 2020, be carried out by the First Respondent other than in connection with a single specific event or task of shortterm duration?The Hearing
[7]The Claimant was represented by Mr T Pochron and gave evidence. The First Respondent was represented by Mr L Varnam, who called evidence from Mr T Morton, a director of ARMS. The Second Respondent was represented by Mr A George, he called Sir B Boothby, a director of TQS, and Mr J Walsh-Heron, managing director and Chief Executive of TQS.[8]In making my decision I also considered the documents from an agreed 630-page bundle of documents which the parties introduced in evidence. The First Respondent also provided a written opening statement, and the Second Respondent provided a Skeleton Argument.Findings of Fact
[9]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents.[10]The Adventure Activity Licensing Authority (AALA) was set up to licence outdoor activities involving children following the Lyme Bay canoeing tragedy. TQS was originally designated the AALA. In 2007 the HSE became the AALA and TQS were contracted to provide services to them including inspections and the production of reports. These reports and inspections are required by virtue of Regulations 6(2) and (3) of the Adventure Activities Licensing Regulations 2004/1309 (the 2004 Regulations): “6.— Consideration of applications for licences(1) The licensing authority may grant or refuse a licence but, without prejudice to its discretion to refuse a licence on other grounds, the authority shall not grant a licence unless– (a) it is satisfied that the applicant has– (i) made a suitable and sufficient assessment of the risks to the safety of the young persons and other persons who will be engaged in the adventure activities in respect of which the application is made or whose safety may be affected thereby; (ii) identified the control measures he needs to take in consequence of that assessment to ensure, so far as is reasonably practicable, the safety of those persons; (iii) made the arrangements referred to in regulation 9(1)(a) and (b); (iv) appointed competent persons to advise him on safety matters or has competence in such matters himself; and (b) the required fee has been paid.(2) The licensing authority shall, before reaching a decision as to whether or not it will grant a licence, first consider a report made to the authority by a person authorised by it for that purpose pursuant to regulation 12.(3) The report referred to in paragraph (2) shall be made only following an inspection by the person making the report and, subject to regulation 7(2), carried out after the application for the licence has been received.(4) The inspection referred to in paragraph (3) shall be of any such places, equipment and documents as the person making the inspection thinks necessary for the purpose of enabling the licensing authority to satisfy itself on the matters referred to in paragraph (1).”[11]Without a report, carried out after an inspection, the HSE is unable to lawfully issue a licence.[12]TQS conducted the inspections and reporting via five Senior Inspectors who would undertake inspections and produce reports setting out whether a licence should be granted. All applications for a licence, including renewal applications, were subjected to a site visit. Each Senior Inspector was responsible for a specific geographic area. Senior Inspectors could undertake spot checks of premises and pre-emptive inspections in the 12 months before expiry of a licence with a view such an inspection could be used to inform a renewal application report. Senior Inspectors could also use a number of freelance inspectors to complete site visits and provide reports, on their behalf. Senior Inspectors could claim expenses for travelling to the various sites for inspections.[13]In his evidence before me, Sir Boothby explained that TQS was not for profit and funded by way of a grant from the HSE that would cover the costs of running the organisation. These costs were reported to the HSE on a regular basis. Since 2007 any fees received for licences, although money due to the HSE as the AALA, were processed and retained by TQS and any shortfall in operating costs were then met by HSE by way of the grant. Mr Morton’s evidence was that TQS were provided with a retainer and were able to keep fees payable for licences. I prefer Sir Boothby’s evidence in respect of this as he was involved with the financial running of TQS. The details of the services provided by TQS can be found in their contract documentation and in particular are set out at pages 112-117 of the bundle.[14]In August 2019 the HSE retendered for an inspection service and the First Respondent, ARMS, was the successful bidder. The details of services that were to be provided by the successful bidder can be found in Schedule A of the tender documentation at pages 190-202 of the bundle.[15]The terms of the tender reflected that the administration of the licensing service was to be taken in-house by HSE and ARMS was to provide inspections and reports. Rather than use the same funding model as TQS, HSE wanted the winning bidder to provide a fixed cost for each inspection. In their tender document it was made clear that that site visits would only be required for new applicants for a licence (5.18 at page 196 of the bundle), with spot checks only being possible with written permission of HSE (7.1 at page 198 of the bundle). Site visits for renewal applications were only to be carried out after considering all the information available to the inspectors (5.19 at page 196).[16]Mr Morton’s evidence was that his view and the view of HSE was that inspections under the 2004 Regulations did not require a site visit. Under the new arrangements ARMS would carry out a desktop review of renewal applications, with those inspections being charged to the HSE at a lower cost than inspections with site visits. I accept his evidence that this is his view and that of the HSE as the retender document was drafted on those terms and the contract awarded on that basis and that will be the way in which ARMS will operate.[17]However, I have found that it is not within the powers of the HSE to prevent site visits for renewal applications. Regulation 6(4) of the 2004 Regulations makes clear that any inspection shall be of any such places, equipment or documents as the person carrying out the inspection shall consider necessary. I find the tender documents make clear renewal site visits, rather than being not carried out at all, are to be carried out at the discretion of the person carrying out the inspection. All the witnesses agreed that the 2004 Regulations and the underlying Act of Parliament had not changed. I therefore find that this was also the position while TQS held the contract.[18]Under the new arrangements with ARMS, inspectors will be selfemployed. Each inspector will carry out fewer inspections with the inspections being split between 20 inspectors instead of five. Spot check visits are only carried out with the permission of the HSE and renewal site visits would not always be carried out. Reports and recommendations for granting licences and potential conditions will be provided to the HSE.[19]The First Respondent said the Claimant had agreed the service had fundamentally changed because site visits were no longer going to be compulsory for renewal applications. I accept that this is Mr Read’s view because of his feeling that site visits at renewal are important to the system of licencing. However, I have found that site visits have always been discretionary rather than compulsory under the 2004 Regulations and that his view is held on a misunderstanding of those regulations.[20]During the retendering process all parties treated the process as being subject to TUPE regulations. As part of the retendering process, the HSE agreed to be responsible for any TUPE costs. Mr Morton’s evidence was that at the beginning he was unsure and that felt it could go either way and I accept that evidence, however the process did continue on the basis the TUPE applied following legal advice. It was only on receipt of the ET3 in this matter that it became clear that the First Respondent did not accept that a transfer under the TUPE Regulations had taken place.[21]TQS ceased providing services to the HSE at the end of their contract on 31 March 2020, and ARMS began providing services on 1st April 2020. On 27 April 2020 Mr Read received what was described as a redundancy payment from ARMS and was informed he was no longer employed.Law
[22]The TUPE Regulations only apply to a relevant transfer as described by Regulation 3 which, as far as is relevant to the issues before me, states as follows: “3(1) These Regulations apply to—(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;(b) a service provision change, that is a situation in which— (i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client's behalf (“a contractor”); (ii) activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client's behalf; or (iii) activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied. (2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. (2A) References in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out. (3) The conditions referred to in paragraph (1)(b) are that— (a) immediately before the service provision change— (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use.”[23]All the parties agreed that the question of whether there had been a service provision change under Regulation 3(1)(b) is a matter of fact and degree for me to decide on the evidence.[24]For the Claimant, Mr Pochron argued that the activities being carried out by TQS and ARMS were fundamentally the same. During the retendering process all parties had agreed that the TUPE Regulations would apply. The HSE were bringing the administration in house but leaving the inspectorate function to be carried out by ARMS. That inspection function still needs to be carried out and could not be fundamentally different as the 2004 Regulations have not changed; the inspectorate service was the same as it ever was.[25]For the Second Respondent, Mr George also argued that a relevant transfer had taken place for the same reasons that the Claimant had set out. He argued in the alternative a transfer of an economic entity had taken place under Regulation 3(1)(a), the fact TQS had in effect been split in two did not prevent a business transfer for the purposes of the regulations.[26]Mr Varnam for the First Respondent argued that the activities carried out by ARMS are fundamentally different to those carried out by TQS. He argued in particular that the change in status of those undertaking the inspection, from employed to freelancers, that their role in terms of being able to organise spot checks or undertake advance inspections was considerably more limited. He emphasised the difference between carrying out a site visit for every application, around 80-120 visits per year for each inspector, which was the working practice of TQS, and the inspectors for ARMS who would undertake site visits for new applicants only, around 13% of total inspections.[27]In relation to Regulation 3(1)(a), Mr Varnam argued that the workforce and management had changed and that TQS continued to exist as an entity after the transfer. He referred me to Cheeseman v R Brewer Contracts Ltd [2001] IRLR 144 and asked that I consider the multifactorial approach, and that the intentions of the parties are, at the highest, just another factor to be considered.[28]If I were to find a transfer had taken place, Mr Varnam argued, in the alternative, that any transfer was for the short-term task of carrying out the redundancy process, and not for the long-term activities of ARMS.Conclusions
[29]I have considered the facts as I have set out above and the submissions of the parties in reaching my conclusions on the issues before me.[30]“Did activities cease to be provided by TQS on behalf of the HSE 31st March 2020?” I conclude the answer to that question is plainly yes. TQS were no longer contracted by the HSE after that date.[31]“If so, were fundamentally the same activities carried out by ARMS on behalf after 31st March 2020?” In paragraph 6 of his opening note, Mr Varman described the relevant activities as the carrying out of inspections on behalf of the HSE. I conclude this is a fair description of the activities that are being carried out. The HSE in their position as AALA are required by law to consider reports that have been drafted following an inspection. It is the report writing and inspections that the HSE retendered for. While there are differences in the way ARMS will be carrying out the inspections, I conclude that the differences in the way the inspections are to be undertaken do not fundamentally alter the activities being carried out.[32]“If so, was there, prior to 31 March 2020, an organized grouping of employees situated in Great Britain which had as its principle purpose the carrying out of the activities concerned on behalf of the HSE?” It is accepted by the First Respondent that there was an organised group carrying on that activity in Great Britain and I conclude that there was such a group.[33]“If so, did the HSE intend that fundamentally the activities would after 31 March 202 be carried out by the First Respondent other than in connection with a single specific event or task of short-term duration?” I conclude that the HSE did intend that the activities of carrying out inspections on behalf of the HSE was to be undertaken by ARMS other than in connection with a single event. The requirement to consider reports following applications for a licence is a continuing one as is the requirement for inspections, that is clear from the statutory background and the tender documents.[34]“Is TUPE applicable to the case, because there was either a business transfer or service provision change?” In light the above I conclude that TUPE is applicable to this case because there was a service provision change on 1 April 2020.The Law
[35]The issue of whether the transfer was the sole or principal reason is a question of fact for the tribunal. The burden of proof is initially on the Claimant to show a prima facie case that the TUPE transfer was the reason for dismissal. In assessing whether the transfer was the reason for dismissal, the question is what was on the mind of the decision maker.[36]The leading case in respect of redundancy is that of Williams v Compare Maxam Ltd [1982] ICR 156. In general terms, employers acting reasonably will give as much warning as possible of impending redundancies to employees, consult about the decision, the process and alternatives to redundancy, and take reasonable steps to find alternatives such as redeployment to a different job.Conclusions
[37]In structuring my conclusions, I again have regard to the list of issues as considered by EJ Webb and the slightly different version as contained in the bundle. I shall turn to each of the issues in turn.[38]The Claimant asserts that the reason for the dismissal was the transfer. I have considered submissions advanced on behalf of the Claimant that Mr Morton had decided there would be a reorganisation when he tendered for the contract in 2019. Accordingly, the Claimant submits that he and other employees did not fit into his financial plans and so it was the transfer that acted as the trigger for the dismissal. It is stated by the Claimant that Mr Morton had in his mind that he wanted the freelancers to undertake work, not the Senior Inspectors, and that from this the Tribunal can conclude that it was always his position that the Senior Inspectors were unwanted following transfer. I am specifically referred to a document at page 491 of the bundle that details an email from Mr Morton to the Claimant that indicates that the relocation and reorganisation of activities have been required in connection with the transfer, which resulted in the redundancy situation. I am invited to consider the proximity to the transfer as a factor to indicate that the transfer was the reason for the dismissal.[39]The Respondent invites the Tribunal to consider that the reason for dismissal was that the post had become redundant, not the fact that there had been a transfer. In support of the submission I am invited to consider that there is no evidence to support the Claimant’s assertion that the transfer was the operative factor in dismissal. It is submitted that the decision to make the Claimant redundant did not result from the transfer and instead was from the change of the services to be provided to the HSE. The Respondent states that the risk of redundancy was being raised long before the proposed transfer to the Respondent and that this acts as an indicator in support of a finding that the redundancies were not made due to the transfer.[40]In considering the respective arguments, I am acutely aware that the proximity of the transfer to the dismissal can act as a factor in support of the Claimant’s case; however, in the particular circumstances of this case, it is in my view necessary to consider the lengthy chronology of events prior to the transfer and, in particular, the matters that were outside of the control of either TQS or ARMS. It was, in my view, outside of the control of both companies that there were to be changes to the funding arrangements and the manner in which the contract would be operated. It was a decision made by the HSE that necessarily required both TQS and Mr Morton to make changes to their respective working practices. It is, in my judgment, relevant that the HSE were making changes to their contractual requirements regardless of any acts that could be undertaken by TQS or Mr Morton and the contract with TQS was to be terminated on 31st March 2020 regardless of Mr Morton’s actions.[41]I consider that, but for the transfer, it would still have been necessary for the Claimant’s former employer to have taken some reactionary steps as a result of the actions of the HSE. Those reactionary measures were determined primarily by the fact that the HSE had amended their requirements of service, not as a result of decisions made by TQS or ARMS. In consideration of the reason for dismissal, I agree with the submission that the change of funding arrangements would have occurred whether or not there had been a transfer.[42]In assessing the reason for dismissal, it seems to me to be necessary to grapple with the email that I have been referred to at page 491 to state that the “relocation and reorganisation of the activities have been required in connection with this transfer, which have resulted in this redundancy situation”. It is my view, on a general basis, that there has been a conflation between issues that relate to the TUPE transfer and the redundancy process. There are various documents within the bundle, that I shall consider further below, that necessarily provide information that is both relevant to the transfer and potential redundancy situation. It seems to me that in this particular case there is interplay between information that is relevant to the TUPE process and the redundancy process. For example, employees are informed at a relatively early stage that the contract with TQS will be terminated but that this may lead to transfer or redundancy. Questions raised by the Claimant to Mr Morton, as included in his own notes, range across issues that are relevant to the redundancy, TUPE or both. I consider that the email at page 491 is yet another example of the particular feature of this case and not determinative as a piece of evidence in support of the Claimant’s position.[43]Having considered the submissions made by the parties, and taking a holistic view of the evidence available in respect of dismissal, I am not satisfied that the reason for dismissal was the transfer. I attach particular weight to the factors that I outline above and I prefer the Respondent’s submissions when reaching my conclusion.[44]If I am incorrect in my assessment of the reason for dismissal, and the reason for dismissal was the transfer itself, then it is my judgment that the Respondent had, in any event, an ETO reason for dismissing the Claimant.[45]On this particular issue, the Claimant submits that there is no evidence to underpin the financial decision making of Mr Morton. I am invited to embark upon a broad-brush analysis of the approximate figures outlined in evidence and conclude that the business model remained viable. The Claimant states that there was to be no immediate reduction in funding following transfer and that, whilst it is accepted that the HSE changed the overall contract, a profitable service for inspections remained. The submission is made on behalf of the Claimant that the amount of money the HSE paid per inspection was entirely decided by Mr Morton and that there was never any requirement that the business model operate freelance inspections only. I am asked to consider that the freelancers are, in reality, employees with a different label. I am invited to have regard to the submission that the HSE did not dictate the nature of the business model to the Respondent and other prospective contractors as part of the tendering process.[46]Contrary to the Claimant’s submissions, the Respondent submits that there was a change to the work force in that the number of Senior Inspectors declined from five to zero, the workforce more generally shrank significantly and 30% of the role of each Senior Inspector was no longer to be performed.[47]The Claimant effectively invites the Tribunal to undertake a careful analysis of the Respondent’s business model, make calculations regarding the efficacy of the model and determine the reasonableness of the minutiae of the business decisions that were required to be made at the time the tendering process commenced in 2019. It is not the role of the Tribunal to dictate to businesses how they should be managed. In my approach to this particular issue, a number of points carry substantial weight. Firstly, the HSE had determined that the contract was to substantially change in nature. Secondly, as part of the change, there were significant reductions in the tasks to be undertaken as part of the role. Thirdly, the HSE were no longer offering an indemnity of sorts so to make up for any shortfall between the fees received and expenses incurred. Fourthly, on my general assessment of the financial position as a result of the changes, the Respondent was perfectly entitled to make business decisions to reflect the changing nature of the contractual expectations. I have particular regard to the fact that the number of Senior Inspectors reduced to zero and the number of freelancers increased dramatically. In terms of the financial implication, it appears, in my judgment, that a significant saving would have been made as a result of the organisation and that as a result of the reorganisation the Respondent was able to adhere to the expectations contained within the Statement of Service Requirements.[48]Having considered the totality of the evidence, I find that the Respondent would have had an ETO reason for dismissal, had I made the initial finding in favour of the Claimant and found that the transfer was the principal reason for dismissal.[49]As a result of my conclusions in respect of the above, I turn to consider whether there was a potentially fair reason for dismissal. For many of the reasons already outlined above, I consider that the reason for dismissal was redundancy. I have already outlined the contractual changes outside of the Respondent’s control, the financial implications of those changes, the wholesale structural change that the Respondent deemed necessary and the reduction in tasks to be undertaken in the role of inspector. In my view, these issues are all strong indicators that redundancy was the reason for dismissal and I consider that the requirements of the business for employees to carry out work of the kind undertaken had ceased or diminished.[50]In assessing whether the Respondent acted reasonably, the Claimant makes submissions in respect of a number of issues, namely: a) Was there reasonable consultation during the period prior to dismissal? b) Did the Respondent act reasonably in identifying a pool of employees from which to make dismissals and, if relevant, did the Respondent act reasonably from selecting from that pool? c) Did the Respondent take reasonable steps to identify suitable alternative employment?[51]In respect of the consultation period, the Claimant asserts that Mr Morton had made decisions regarding the business model at the time he formed the Respondent compaany in 2019. It is suggested that there was nothing that could be said to change his mind. The Claimant submits that there was never any information provided in respect of the financial model. It is suggested that the Respondent should have engaged with the Claimant at the time the business was formed. The Claimant submits that a consultation in 2019 would have allowed genuine engagement and allowed the employees an opportunity to obviate dismissals. I am referred to a number of emails to state that a decision had already been made. I am invited to consider that the Claimant was effectively prevented further from engaging in genuine consultation when it was stated in correspondence that there would first be the TUPE consultation and that this would be followed by the redundancy consultation.[52]The Respondent submits that the Claimant places far too high an obligation on the company and that it is unrealistic to suggest that the Respondent company should consult with Senior Inspectors at a time when the company had yet to be, or only recently been, formed and when the individuals were not the Respondent’s employees. It is submitted that the need for redundancies was driven by commercial imperatives connected to the HSE funding model and that whilst there has been criticism by the Claimant due to an alleged failure to consult to avoid redundancies, the Claimant failed to offer any alternatives during the appeal process. It is advanced by the Respondent that it is unclear what consultation about alternatives to redundancy could have achieved given the structural changes required. I am invited to consider that the Claimant was kept apprised of the situation, engaged in various discussions and meetings with the Respondent, was made aware of alternative roles, was able to ask questions regarding the process, that the Claimant accepted that no information was discovered post-dismissal that he says should have been disclosed during the consultation and that the aforementioned submissions are the relevant background upon which to assess formal consultation process.[53]In my judgment, as I have commented upon above, there is an overlap between the relevant issues relating to the transfer and the redundancy matters. This was necessarily the case given Mr Morton’s role within the Respondent company but also the Claimant’s previous employer TQS. It is, in my view, artificial to suggest that the redundancy process only commenced when the formal process was commenced on the 1st April 2020. I have been referred to various emails, notes of meetings and telephone discussions that demonstrate the process of consultation and sharing information had been ongoing for a significant period prior to the 1st April 2020. In my view, Mr Morton was as open as he could have possibly been in the circumstances of a confidential and sensitive tender process. Thereafter, once the decision had been made to offer his company the tender, I consider that Mr Morton was again as open as he possibly could have been with the Claimant and other employees given the mixed messages he received from the HSE on matters relating to transfer. In my judgment, Mr Morton engaged with the Claimant over a period of months and actively sought to explain the circumstances of the transfer and redundancy as best he could given the information available.[54]It is necessary to grapple with the submission made by the Claimant that the decision was already made back in 2019 to make the Claimant and others redundant and that there should have been consultation at that time. In my judgment, it is unrealistic to suggest that the Respondent should have engaged with the Claimant in consultation in November 2019, or earlier, in particular when the company had only been recently formed, did not employ the Claimant, was engaged in a confidential tender process in which other competitors may have been involved and that ultimately related to an overarching business decision that Mr Morton was entitled to make that, in his opinion, was necessarily in the business interests of his company and reflective of the changing service needs of his prospective contractor, the HSE. I reject the submission that the Respondent should have consulted at this early stage. It is, in my view, placing a monumentally high expectation upon the Respondent in the circumstances.[55]In my view, having considered the factors that I identify at para 53 above, and assessing the procedure as a whole, I conclude that the Respondent acted reasonably. I agree with the submission made on behalf of the Respondent, this was amply sufficient consultation.[56]I thereafter turn to the submissions made regarding pooling. The Claimant submits that imposing a blanket position that all employees with the Senior Inspector role were to be made redundant was unreasonable. I am asked to consider that a number of individuals could have been kept on a salaried basis given that 70% of the role still needed to be undertaken. On a rudimentary assessment, I am invited to consider that three of the five roles could have been saved. The Claimant, in response, makes the point that all roles had ceased to exist and so it was plainly reasonable to place all individuals in the role at risk of redundancy.[57]In my judgment, having made the decision that the fundamental restructuring was required, and that the restructuring required an alternative business model that rendered the role of Senior Inspector redundant, it is reasonable that those individuals were placed in a pool together. The role had ceased to exist and, in my view, it follows that the pooling process itself was necessarily reasonable.[58]I turn finally to the identification of suitable alternatives. The Claimant submits that the Respondent failed to properly put its mind to alternatives and that the only offering available was the existing inspector role but on a freelance basis. In my view, it is plain from a full reading of the correspondence that the Respondent sought to engage the Claimant in discussion relating to the Consulting Inspector role and also put forward details of a Liaison Officer role. Whilst the Liaison Officer role was inappropriate, Mr Morton demonstrated support to the Claimant in suggesting that his skills may be appropriate for the Consulting Inspector role. Over and above these discussions are more general opportunities as a freelance inspector, a role that the Claimant at least one stage had demonstrated some interest in engaging with. I consider that the attempts made by Mr Morton were genuine and, in all the circumstances, were reasonable given the nature of the business needs at the time and the structure that was to be reasonably implemented.[59]Accordingly, I dismiss the claim.